"Don't Ask," Do Litigate

HLS should challenge unfair amendment, turning words into action on gay rights

Last spring, threatened with a $328 million loss of federal funds, the University granted military recruiters access to the Harvard Law School (HLS) Office of Career Services—even though the armed forces’ “don’t ask, don’t tell” rule on homosexuality violates Harvard’s anti-discrimination policy.

A coalition of law schools, students and activist groups are contesting the Solomon Amendment, which mandates that universities allow military recruiters on campus and which was successfully invoked to open the doors of HLS to recruiters last spring.

The bold decision to challenge the Solomon Amendment represents a crucial step in the protection of First Amendment freedoms and gay rights. The Law School’s conspicuous lack of participation in the lawsuit, however, is disappointing and raises serious questions about the University’s commitment to fight discrimination.

The military’s “don’t ask, don’t tell” policy discriminates against homosexuals, and the endorsement of military recruiters on campus undermines Harvard’s traditional role as a progressive institution dedicated to equal rights.

For this reason, HLS should join the suit—seizing the opportunity to defend its anti-discrimination policy against the egregious violations of the Solomon Amendment. In a statement issued in response to the lawsuit, HLS Dean Elena Kagan called the military’s policy on homosexuals “terribly wrong in depriving gay men and lesbians of the opportunity to serve their country,” and commended the organizations that brought the suit. But Kagan did not reveal why HLS had not signed on as well, and while HLS has voiced its opposition to the policy, it is time to back its words with action.

The federal government has taken a heavy-handed approach by threatening law schools that do not cooperate with severe financial penalties—including the loss of Perkins loans, work-study funds and government research grants. Certainly, Harvard cannot afford to forgo millions of dollars in federal funding, but challenging the amendment would not result in a loss of funding. HLS could continue to allow military recruiters on campus, and retain its funding, while fighting the law in court. Barring the military from access to law school career service centers will not hamper the U.S. military’s ability to protect our country. The University offers no compelling explanation for Harvard’s reluctance.

Some at HLS have speculated that members of the University administration may be steering clear of the suit for political reasons. Such a move is morally irresponsible and HLS, as well as the wider University community, should pressure Harvard into action.

The timing of the lawsuit and Harvard’s statement highlights the incongruence of the administration’s actions and words. The lawsuit took effect one day before the first HLS reunion of gay, bisexual, lesbian and transgendered alumni, at which Kagan issued her statement in support of gay rights in the military. The disconnect between Harvard’s internal and external faces is a cause of grave concern. The Law School’s visibility is all the more reason for it to assume a leadership role and to take a principled stance on this issue. HLS should join the suit to regain its distinction as a fierce promoter of equal rights.